An initiative at the National Law School, Bangalore to provide a platform for discussing, debating, analysing and critiquing legal developments of contemporary importance

Sunday, May 27, 2012

Regulation of Media by the Supreme Court?

On 17 May 2012, we
discussed the issue of judicial regulation of media in the context of the
Sahara India Constitution Bench. Please note that the SC has reserved its
judgment on this issue.

The proceedings
happened in the course of Sahara India
Real Estate Corporation v. SEBI [C.A. No. 9813/2011] A news channel CNBC TV-18
had reported on its financial strategy made before SEBI. Sahara India made an
interlocutory application before the Court asking that the media be restrained
from publishing this material. Fali Nariman was representing Sahara in this
matter and made the application. Arvind Datar and Pratap Venugopal, appearing
for SEBI, pleaded ignorance about how this material had got into the hands of
the new channel. Earlier, according to a news report in Mint, the eligibility
criteria for journalists was sought to be tightened in the light of the
Vodafone tax dispute, but journalists made a representation to the Court's
Press Committee (offically known as the Law Reporting Council) headed by former
Justice Dalveer Bhandari and the norms
were relaxed. The Bench consisted of Chief Justice SH Kapadia and Justices D.
K. Jain, S. S. Nijjar, Ranjana Prakash Desai, and J. S. Khehar. A notice was
saying that anyone who wished to intervene could. Note that The CJ also heads
the Law Reporting Council now. Several newspapers, the Press Council of India
and so on intervened. Soli Sorabjee and KK Venugopal were amici. Several of the
lawyers, including Fali Nariman and Prashant Bushan made the submission that this
would result in curbing freedom of the press. They said that witness statements
as well court proceedings were freely reportable. Harish Salve on the other
hand, supported the move by saying that media reporting would result in a
chilling effect on the press. The SC
reserved its verdict. The next listing for final hearing is on 30 May
2012.

We discussed the
important precedent in the case of Naresh Sridhar Mirajkar v. State of
Maharashtra (1966), a 9 judge bench of the Supreme Court held that the High
Court had inherent powers to ask that a witness testimony in a particular case
be postponed from reporting. This has been cited in the course of arguments. In
this case, the witness had pleaded that it would hurt his business interests.
The dissent by Justice Hidayatullah noted that if it was a public trial in
general, there was no reason why a part of the trial could be made in camera.
The majority judgment by Justice Gajendragadkar has fairly specious reasoning.
But notably, postponement of publication was expressly held not to violate the
freedom of speech and expression since it was only theincidental effect of a
judicial order. Following which, by 1972, Bennett Coleman (1972) 2 SCC 788,
decides that the pith and substance test does not apply to restrictions on
newspapers, although Justice Mathew's dissent holds that the Mirajkar majority
was right.

We also looked at
Rajendra Sail v. M.P. High Court Bar Association (2005) 6 SCC 109, where
Justice YK Sabharwal observed that fair criticism of a court judgment was
alright, since judgments were public documents. However, since judges cannot
reply to some of this criticism, every effort must be made to be doubly
careful. The integrity of the Court should preserved - and this involves not
attributing bias or personal motives of judges deciding the question. If so,
the journalist can be hauled up for contempt. Here, since the parties had
tendered unconditional apologies, they were let off. The Court took into
account 24 hour news channels, and said that they should engage in
sensationalism. However, this did not relate to a sub-judice matter.

By framing
"guidelines", is the SC approving of pre-censorship by other means?
Most recently, in the BMW case (RK Anand v. Delhi High Court (2009) 8 SCC 106
), the Court held that NDTV's sting operation would not amount to trial by
media. This is not a licence for the media to publish anything, but it
definitely does not mean that guidelines can be formulated. This would amount
to pre-censorship which the court does not endorse.

Suggestions for
self-regulation have been successful in the SC in the past. The observations in
Ajay Goswami v. Union of India (2007) 1 SCC 243 by Justice AR Lakshmananare
also interesting - "the regulation of television broadcasting should not be
that adults should watch what is fit for children." It was important to
keep in mind that norms on regulation of media already exist. S.14 of the Press
Council Act, 1978 was sought to be amended, since it addressed this question.
Derecognition of newspapers or removal of accreditation of a journalist
possibly could address this issue The Court also highlighted the provisions of
the Indecent Representation of Women Act. The notion ofself-regulation of media
was approved here - with respondents Times of India and Hindustan Times being
commended for their in-house mechanisms.

We looked at the
stances adopted by the various intervenors in the case. It was interesting to
note that in spite of the distinction between print media and other forms of
media have been made, the reporting guidelines sought to be framed in this case
are only for the print media. It would be interesting to investigate decisions
made by the Law Reporting Council of the Supreme Court. We also discussed
whether this violated the the right to know recognised by the SC under Article
19(i)(a). We also had a general discussion on the role of "new media"
and courts.